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  • Writer's pictureConstitutional Court of South Africa


Hearing Date: 24 February 2022

Judgement Date: 02 August 2022

Post Judgment Media Summary

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On Tuesday, 2 August 2022 at 10h00, the Constitutional Court handed down judgment in the following consolidated matters: (a) application for leave to appeal against the judgment and order of the High Court of South Africa, Free State Division, Bloemfontein (High Court); a matter which concerned two consolidated applications which were before the High Court; and (b) a direct access and intervention application which emanated from proceedings before the High Court of South Africa, Gauteng Division, Pretoria. The applicants sought the same substantial relief in all applications before this Court.

On 16 September 2021, the High Court handed down judgment declaring section 24(2) of the Legal Practice Act 28 of 2014 (LPA) unconstitutional and invalid to the extent that it precluded foreign nationals who are neither citizens of South Africa or permanent residents from being admitted and enrolled as non-practising legal practitioners.

The applicants in CCT 315/21 and CCT 321/21, are Relebohile Cecilia Rafoneke (Rafoneke) and Sefoboko Phillip Tsuinyane (Tsuinyane), Lesotho nationals who have satisfied all the requirements for admission and enrolment as legal practitioners in terms of section 24(2) of the LPA, save for the citizenship and/or permanent residence requirement.

The applicants in CCT 06/22 are Bruce Chakanyuka, Nyasha James Nyamugure, Dennis Tatenda Chadya and the Asylum Seeker Refugee and Migrant Coalition, acting in the interests of its members. The applicants in CCT 06/22 are Zimbabwean nationals facing the same predicament as Rafoneke and Tsuinyane. The respondents in CCT 315/21 and CCT 321/21 are the Minister of Justice and Correctional Services, the Legal Practice Council, the Minister of Trade Industry and Competition, the Minister of Labour and the Minister of Home Affairs, acting in their respective capacities as the statutory bodies tasked with the implementation and regulation of the legal profession and the immigration laws of South Africa. The intervening party is Daphne Makombe, a Zimbabwean national who has satisfied the requirements for admission and enrolment as a legal practitioner, conveyancer and notary, save for the citizenship and/or permanent residence requirement.

Addressing the issues raised, the High Court held that the LPA should not be viewed in isolation and that the impugned provisions must be adjudged in light of the Constitution and in conjunction with the Immigration Act 13 of 2002 and the Employment Services Act 4 of 2014. The High Court reached the conclusion that the differentiation between citizens and permanent residents on the one hand and non-citizens on the other is indeed rational and serves a legitimate governmental purpose. One of the many points raised by the High Court was that a person who entered the country with a concession to study would, by virtue of completing his or her studies, be allowed to change his or her status without regard to any other legal impediments and that such a process would be in direct conflict with governmental policy and law as it would be tantamount to changing such person’s status without the intervention of the Department of Home Affairs. The High Court further held that section 22 of the Constitution limits the rights of non-citizens to practise law in South Africa.

The High Court reasoned that the discrimination in section 24(2)(b) of the LPA is fair insofar as it prohibits foreign nationals from being admitted and enrolled as practising legal practitioners. The High Court however, found the section to be inconsistent with the Constitution as it does not allow non-citizen to be admitted and enrolled as non-practising legal practitioners. The High Court stated that a just and equitable remedy would be a declaration of invalidity and a suspensive order to allow the legislature to cure the defect. The High Court also provided non-citizens with interim relief which is to operate during the period of such suspension, allowing non-citizens to be enrolled as non-practicing legal practitioners should they comply with all the requirements.

Before the Constitutional Court, the applicants contended that the impugned provisions offended sections 9(1) and 9(3) of the Constitution in that the differentiation between citizens and permanent residents (on the one hand) and all other foreign nationals (on the other), amounted to unfair discrimination as the impugned provisions did not require applicants, for purposed of admission, to have complied with immigration laws which permit their employment in South Africa. To this end it was argued by the applicants that in its reasoning, the High Court confused the issue of admission with that of employment.

The applicants further argued that should the Court find that the provisions have a governmental purpose, it should not be considered a legitimate one. They contended that the impugned provisions are in conflict with the objectives of the LPA because the stated purpose of the impugned provisions is not reasonably likely to be achieved by those provisions. Further that they are reasonably not likely to optimise opportunities for law graduates nor is it in the purview of the LPA to deal with immigration and employment of foreigners.

The applicants submitted that there are less restrictive means to achieve whatever governmental purposes alleged, as the LPA has sufficient safeguards in the protection of the public against perils such as fraud. Furthermore, that the immigration and employment laws of South Africa have measures in place to ensure that citizens get preference over foreigners in the labour market. They further argued that the admission of foreign nationals will in no way limit the rights of citizens under section 22 of the Constitution.

Scalabrini Centre of Cape Town, the first amicus curiae urged the Court to take into account that sections 22 and 27 of the Refugees Act 130 of 1998 entitle refugees to live, study and work in South Africa, without any restrictions, and to consider the challenged provisions in a manner consistent with the rights conferred on refugees in terms of these provisions. The International Commission of Jurists, the second amicus curiae, relied on various international instruments, and argued that they impose a duty on State Parties to ensure that all people, irrespective of citizenship or whether their status is documented under domestic law or not, enjoy the right to work. In agreement with the submission of the applicants, the Pan-African Bar Association of South Africa, the third amicus curiae, argued that the impugned provisions frustrate diversity in nationality in the legal profession in the context of the increasingly cross-border and globalised nature of the commercial, public and human rights practice.

On the merits, the Minister of Justice and Correctional Services, first respondent, submitted that the impugned provision is in line with governmental obligations which seek to ensure that foreign nationals do not circumvent immigration and labour laws by securing a license to practice law under the auspices of student visas. The first respondent argued that allowing the parties, who have unsuccessfully applied for permanent residence or exemption, to be admitted would amount to such circumvention.

The first respondent submitted further that the differentiation is justifiable, fair and consistent with section 9(5) of the Constitution. To this effect, the first respondent argued that the preamble of the LPA embraces the provisions of section 22 of the Constitution and one of the reasons for it being promulgated was to regulate the legal profession in the interests of the public. The respondent argued that the practise of law does not require a critical or rare skill as there are numerous citizens and permanent residents who are suitably qualified and are already struggling to secure employment. The first respondent submitted that there is no uniform approach to the limitation of non-citizens rights to practice law and each country favours its own best interests after considering the economic, political, legislative and constitutional context unique to it.

The Legal Practice Council, the second respondent, submitted that the LPA regulates entry into the profession taking into consideration the provisions of section 22 of the Constitution, and that this is one of the grounds informing the Act’s differentiation of citizens, permanent residence holders and foreign nationals. The second respondent argued that the right to choose a vocation does not fall within a sphere of activity protected by a constitutional right that is available to refugees and other categories of foreign nationals. The second respondent contends that it is a well-established principle that the rights in the Bill of Rights are mutually reinforcing and should be interpreted in that manner.

The second respondent submitted that the rights that are accorded to a foreign national find expression from compliance with immigration laws, including the right to enter into practical vocational training contracts. The second respondent further submitted that the impugned provision serves the legitimate purpose of transforming the legal profession to broadly reflect the demographics of South Africa.

In a unanimous judgment penned by Tshiqi J, the Court held that this Court’s jurisdiction is engaged because the matter concerns the Court’s exclusive jurisdiction as a result of the High Court order having declared the provisions of section 24(2) to be unconstitutional and invalid, albeit, to a limited extent. The applicants were not content with the limited scope of the declaration, and consequently sought to challenge it. The Court concluded it had the necessary jurisdiction in terms of section 167(5) to make the final decision on the declaration. In addition, the Court permitted a direct appeal to it and granted direct access to Ms Daphne Makombe. The Court reasoned that the application also implicated the equality clause in section 9 of the Constitution, therefore granting it jurisdiction.

The Court held that section 22 of the Constitution preserves the rights of citizens to choose their trade, occupation or profession freely and that it also empowers the State to enact legislation to regulate freedom of trade, occupation and profession. The Court held that section 24(2) of the LPA is legislation that regulates the practice, legally related occupations and the profession in general. The Court reasoned that through the enactment of section 24(2) of the LPA, the regulatory competence of the state has been exercised in a manner that is consistent with a citizen’s right to choose their profession. The Court concluded that the regulatory competence exercised cannot be said to extend to non-citizens and their choice of profession as section 22 is a right in the Constitution, that does not extend to them. The Court further held that the fact that non-citizens do not have rights that accrue under section 22, does not mean they are not entitled to enter into certain categories of professions in South Africa.

The Court further held that the differentiation between citizens and permanent resident on one hand and foreign nationals on the other does not amount to discrimination which is unfair. The Court reasoned that citizenship is not one of the listed grounds in section 9(3) of the Constitution nor was the Court convinced that citizenship may be classified as falling under the listed ground of social origin. The Court held that the limitation created by section 24(2) is narrowly tailored to the admission of legal practitioners and does not operate as a blanket ban to employment in the profession. Therefore, the activity which the applicants sought constitutional protection for is the enjoyment to choose one’s vocation and as such this cannot be held to amount to unfair discrimination, as that right does not fall within a sphere of activity protected by a constitutional right available to foreign nationals such as the applicants.

Accordingly, the Court granted leave to appeal and dismissed the application of constitutional invalidity on its merits.

The Full judgment here.

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